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Obama Photog Says "You're Both Wrong" To AP & Fairey

timothy posted more than 4 years ago | from the faire-use-is-no-excuse dept.

The Media 222

NewYorkCountryLawyer writes "In Fairey v. Associated Press, the Associated Press said artist Shepard Fairey's painting had infringed its copyrights in a photo of then-President Elect Barack Obama. Fairey said no, it was a 'fair use'. Now, the freelance photographer who actually took the AP photo — Manuel Garcia — has sought permission to intervene in the case, saying that both the AP and Fairey are wrong. Garcia's motion (PDF) protests that he, not AP, is the owner of the copyright in the photograph, and that he never relinquished it to AP. And he argues that Fairey is not entitled to a fair use defense. According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration, and a desire for an autographed litho. Maybe Mr. Fairey should have given him that autographed litho."

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222 comments

Photog? (1, Informative)

Tubal-Cain (1289912) | more than 4 years ago | (#28670379)

Title would be much clearer if the g was dropped from 'Photog'.

Re:Photog? (0)

Anonymous Coward | more than 4 years ago | (#28670387)

'Photographer" would work too.

Re:Photog? (5, Insightful)

slarrg (931336) | more than 4 years ago | (#28670571)

Personally, I would prefer the headline "Obama Photographer Says AP and Fairey Are Both Wrong" for the same number of characters.

Re:Photog? (2, Insightful)

TinBromide (921574) | more than 4 years ago | (#28670669)

Or drop the Obama since Garcia is not the official whitehouse photographer, [nppa.org] which might be construed as the Obama Photographer because the whitehouse photographer mostly photographs the president in interesting places meeting interesting people.

Re:Photog? (1)

slarrg (931336) | more than 4 years ago | (#28670879)

Well, if the headline were referring to any particular White House photographer or their position I would expect it to say "White House photographer" not "Obama photographer". The primary reason for having "Obama photographer" in the headline rather than simply "photographer" is that the news story is only relevant because a well-known, iconic poster was made from the reference photo. If this were a lesser known photo with an equally unknown derivative work it would simply not be newsworthy. Having "Obama photographer" in the headline provides the most useful information about the story's newsworthiness. If this story wasn't about "the Obama photo" no one would bother to read it. The summary exists to clarify any information that couldn't be clearly condensed into the headline and the story exists to provide further information. Though on Slashdot YMMV.

Go back to your TV Guide (1)

djupedal (584558) | more than 4 years ago | (#28671529)

Eh?

Obama wasn't a president at the time that photo was taken. Official [*] has nothing to do with anything...whomever WAS the OWHP then wouldn't have been photographing the President if he had been taking shots of Obama.

Re:Go back to your TV Guide (0)

Anonymous Coward | more than 4 years ago | (#28671667)

Eh? That's not the point gp was trying to make. "Obama photographer", these days, often refers to the White House photographer. If you use "Obama photographer" in an article today (while Obama is president), when you're referring to someone else (in this case a guy who took a picture of Obama before the elections) you create confusion. Seriously, learn to think before posting idiotic comments.

Afro-American Racism Against Whites and Asians (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28671227)

During the election, about 95% of African-Americans voted for Barack Hussein Obama due solely to the color of his skin. See the exit-polling data [cnn.com] by CNN.

Note the voting pattern of Hispanics, Asian-Americans, etc. These non-Black minorities serve as a measurement of African-American racism against Whites (and other non-Black folks). Neither Barack Hussein Obama nor John McCain is Hispanic or Asian. So, Hispanics and Asian-Americans used only non-racial criteria in selecting a candidate and, hence, serve as the reference by which we detect a racist voting pattern. Only about 65% of Hispanics and Asian-Americans supported Obama. In other words, a maximum of 65% support by any ethnic or racial group for either McCain or Obama is not racist and, hence, is acceptable. (A maximum of 65% for McCain is okay. So, European-American support at 55% for McCain is well below this threshold and, hence, is not racist.)

If African-Americans were not racist, then at most 65% of them would have supported Obama. At that level of support, McCain would have won the presidential race.

At this point, African-American supremacists (and apologists) claim that African-Americans voted for Obama because he (1) is a member of the Democratic party and (2) supports its ideals. That claim is an outright lie. Look at the exit-polling data [cnn.com] for the Democratic primaries. Consider the case of North Carolina. Again, about 95% of African-Americans voted for him and against Hillary Clinton. Both Clinton and Obama are Democrats, and their official political positions on the campaign trail were nearly identical. Yet, 95% of African-Americans voted for Obama and against Hillary Clinton. Why? African-Americans supported Obama due solely to the color of his skin.

Here is the bottom line. Barack Hussein Obama does not represent mainstream America. He won the election due to the racist voting pattern exhibited by African-Americans.

African-Americans have established that expressing "racial pride" by voting on the basis of skin color is 100% acceptable. Neither the "Wall Street Journal" nor the "New York Times" complained about this racist behavior. Therefore, in future elections, please feel free to express your racial pride by voting on the basis of skin color. Feel free to vote for the non-Black candidates and against the Black candidates if you are not African-American. You need not defend your actions in any way. Voting on the basis of skin color is quite acceptable by today's moral standard.

Re:Afro-American Racism Against Whites and Asians (-1, Offtopic)

Starlon (1492461) | more than 4 years ago | (#28671453)

The hard truth, but it's never appropriate to post.

Re:Photog? (0)

Anonymous Coward | more than 4 years ago | (#28670667)

What world do you live in where pictures have voices?

Re:Photog? (2, Insightful)

thePowerOfGrayskull (905905) | more than 4 years ago | (#28670761)

Actually, then it'd be downright confusing -- photo says "You're both wrong"? Though "photographer" would have been much better than a made-up abbreviation. On the other hand, "photog" abbreviation has apparently been around since about 1906...

Re:Photog? (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#28671247)

or if they had dropped the entire title and put in 'This news story is immensely irrelevant'.

Is this the photo of... (4, Funny)

syousef (465911) | more than 4 years ago | (#28670381)

...Obama checking out some 17 year old girl's ass?

Re:Is this the photo of... (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28670405)

how stupid are you? I do have to thank you though because idiots like you helped me realize how empty conservatives are. Libertarian for the win.

Re:Is this the photo of... (5, Informative)

devleopard (317515) | more than 4 years ago | (#28670467)

Dude, have you seen the photo [popcrunch.com] ? It's actually out of context (if you see the actual video), but hilarious. If it was Bush, everyone would be hamming it up. Obama's the president, and with that comes our right as Americans to poke fun at him on a regular basis. There's nothing unique about him that exempts him from that. Also, your comment indicates presumptuousness - how to you know syousef is conservative? Also, what's up with being Anonymous Coward? Are you that ashamed of your political ideals?

If it were Bush ... (5, Funny)

yelvington (8169) | more than 4 years ago | (#28670517)

Re:Is this the photo of... (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28670559)

Yeah, that is obviously being taken out of context. He was totally not looking at her in that way. No sir, not the infallible and messiah-like Obama.

Re:Is this the photo of... (5, Informative)

Anonymous Coward | more than 4 years ago | (#28670593)

ABC posted a video of the whole event, he is not checking her out. Or at least, his head does not track her. He's turning around to offer an arm to the woman behind him to help her down the stairs.

Sarkoszy, on the other hand, stares at her ass for a good 10 seconds.

Re:Is this the photo of... (2, Funny)

Anonymous Coward | more than 4 years ago | (#28671073)

Sarkoszy, on the other hand, stares at her ass for a good 10 seconds.

Now, why is that not a surprise?

Re:Is this the photo of... (-1, Troll)

CarpetShark (865376) | more than 4 years ago | (#28671123)

Or at least, his head does not track her.

Come on. You don't really expect a dimwit of his calibre to be able to track moving objects, do you?

Re:Is this the photo of... (1)

martas (1439879) | more than 4 years ago | (#28670573)

this is offtopic, but could you shed some light on the meaning of your sig? i just spent 15 minutes trying to figure out what programming, politics, and the role of the breadwinner in a family all have in common...

Re:Is this the photo of... (2, Informative)

HAKdragon (193605) | more than 4 years ago | (#28670625)

I would assume he's referring to the licenses under which some software is published and the view of some that open source software must be given away and that those who write it are unable to reap a profit from such work.

Re:Is this the photo of... (4, Interesting)

alvinrod (889928) | more than 4 years ago | (#28670637)

I've seen the video, and while there's the possibility that he could have been looking at something else, why should he? Seriously, any sane man would definitely be checking that out. I don't care if I were the king of the universe, I would still be giving that at least a twice over. I don't care if you think it's immoral, inappropriate, or just plain wrong, it's normal male behavior. I don't care if that makes us pigs or not, the only way you couldn't at least toss a casual glance at that either means you're inhuman or not interested. If you watch the video you can tell that Sarkozy is definitely checking that out and for the most part his country could probably give two shits less. If nothing else, that picture tells me that Obama is an average Joe, at least on some level. He may not by the president people want to have a beer with, but I'd stare at some hot ass with him. If anyone thinks this is immoral or inappropriate, go fuck yourself. Seriously, go fuck yourself. You're the same dipshit who wasted time debating whether or not Clinton was getting some side action. You're worrying about the wrong things.

Re:Is this the photo of... (5, Funny)

martas (1439879) | more than 4 years ago | (#28670525)

i especially like sarkozy's look of approval, like he's saying "way to go barack, i can tell we have similar tastes".

Re:Is this the photo of... (4, Interesting)

thhamm (764787) | more than 4 years ago | (#28670555)

say what you want, regarding his taste, full ack. bruni is hot.

Afro-American Racism Against Whites and Asians (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28671011)

During the election, about 95% of African-Americans voted for Barack Hussein Obama due solely to the color of his skin. See the exit-polling data [cnn.com] by CNN.

Note the voting pattern of Hispanics, Asian-Americans, etc. These non-Black minorities serve as a measurement of African-American racism against Whites (and other non-Black folks). Neither Barack Hussein Obama nor John McCain is Hispanic or Asian. So, Hispanics and Asian-Americans used only non-racial criteria in selecting a candidate and, hence, serve as the reference by which we detect a racist voting pattern. Only about 65% of Hispanics and Asian-Americans supported Obama. In other words, a maximum of 65% support by any ethnic or racial group for either McCain or Obama is not racist and, hence, is acceptable. (A maximum of 65% for McCain is okay. So, European-American support at 55% for McCain is well below this threshold and, hence, is not racist.)

If African-Americans were not racist, then at most 65% of them would have supported Obama. At that level of support, McCain would have won the presidential race.

At this point, African-American supremacists (and apologists) claim that African-Americans voted for Obama because he (1) is a member of the Democratic party and (2) supports its ideals. That claim is an outright lie. Look at the exit-polling data [cnn.com] for the Democratic primaries. Consider the case of North Carolina. Again, about 95% of African-Americans voted for him and against Hillary Clinton. Both Clinton and Obama are Democrats, and their official political positions on the campaign trail were nearly identical. Yet, 95% of African-Americans voted for Obama and against Hillary Clinton. Why? African-Americans supported Obama due solely to the color of his skin.

Here is the bottom line. Barack Hussein Obama does not represent mainstream America. He won the election due to the racist voting pattern exhibited by African-Americans.

African-Americans have established that expressing "racial pride" by voting on the basis of skin color is 100% acceptable. Neither the "Wall Street Journal" nor the "New York Times" complained about this racist behavior. Therefore, in future elections, please feel free to express your racial pride by voting on the basis of skin color. Feel free to vote for the non-Black candidates and against the Black candidates if you are not African-American. You need not defend your actions in any way. Voting on the basis of skin color is quite acceptable by today's moral standard.

here is a picture or my a.ss (1)

CHRONOSS2008 (1226498) | more than 4 years ago | (#28670621)

free to all wihtout copyright , this is how stupid US copyright is and look how much money gets wasted while people starve and oil and power get used up over something so retarded it make sme want to look at the exorcist head spin , over and over again

Re:Is this the photo of... (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#28670709)

You just had to bring that up didn't you? The libtards are frothing at the mouth with their "1t waz DRUDGE lies!!!!111 omg" and regurgitating AP 'stories' about how it was all made up...

I couldn't give a toss about fair use, copyrights, yadda yadda. Just don't start painting multi-story portraits of the man on the sides of buildings, please. He's got 7.5 years left; start getting use to the idea now because I am certain that for many of you it won't be enough time to accept that this too shall pass.

Re:Is this the photo of... (1, Informative)

maharb (1534501) | more than 4 years ago | (#28670835)

He doesn't have 7.5 years left. Only 3.5 currently.

I for one am going to vote for change...

Re:Is this the photo of... (2, Funny)

encoderer (1060616) | more than 4 years ago | (#28670937)

Yeah, and the GOP Bench is stacked deep with David's ready to slay Obama's Goliath. I mean, Mitt Romney, Sarah Palin, Mike Huckabee, .... oh, wait....

Re:Is this the photo of... (0)

Anonymous Coward | more than 4 years ago | (#28671267)

Yeah but we have Obama doing God knows what over the next 3.5 years. He's not off to a good start. His approval rating has plummeted [rasmussenreports.com] . In fact, he just crossed the threshold where disapproval outweighs approval. A huge issue with people is immigration, and I suspect that how Obama decides to handle this issue will play heavily on his approval rating if he does what I fear he may.

I would hardly call Obama a Goliath. Poor comparison. The best thing Obama has going for him is the Republican party's intolerance and ignorance, but that may not be enough after Obama's dealt with the likes of CIA conspiracies and federal transparency -- i.e. secret programs beyond warrantless wiretapping and auditing the Federal Reserve, both for which he's acting suspicious over. If either arrives on his table it will hurt him, almost guaranteed.

Re:Is this the photo of... (1)

fishbowl (7759) | more than 4 years ago | (#28670829)

>...Obama checking out some 17 year old girl's ass?

The video tells a completely different story from that still. Believe what you want to believe though.

Re:Is this the photo of... (1)

syousef (465911) | more than 4 years ago | (#28671615)

The video tells a completely different story from that still. Believe what you want to believe though.

The video indeed tells a different story. I have nothing against Obama, except that he is a politician and they are all prone to corruption and self-serving nonsense. I do not follow a U.S. party and I am not a U.S. citizen. The photo is still funny as hell.

Re:Is this the photo of... (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#28671765)

This whole... "President Erkle did this, that, Breaking News: he farted yesterday, last night he put his shoes on, next week he's going to Knucklehead, Illinois for meetings with...." Just give us results dude. That's your effin' job. Enjoy any upskirt you like Erkle..., stop complaining about the guy that came before, ditch the teleprompt and get some, at least SOME shit done. 2012's next week in political time. And what does this have to do with the price of MS Office in China anyway?

Really? (5, Informative)

PotatoSan (1350933) | more than 4 years ago | (#28670435)

Photog? Litho? You can't be bothered to type those out?

Re:Really? (2, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28670443)

"Photog" was to fit within the space limitations of Slashdot headline requirements. And "litho" was the word used in TechDirt; people use the term "litho" all the time to refer to lithographs.

Re:Really? (1)

tyrione (134248) | more than 4 years ago | (#28670747)

"Photog" was to fit within the space limitations of Slashdot headline requirements. And "litho" was the word used in TechDirt; people use the term "litho" all the time to refer to lithographs.

Yes and they are actually artists who make them, not some Internet reader passing off the jargon as if they are in that particular industry.

Re:Really? (1)

Anarchduke (1551707) | more than 4 years ago | (#28671551)

Okay, slow down the judgment there tyrione.

For all you know, NewYorkCountryLawyer could have a history of dealing with lithograph artists, and he could even be into lithography himself as a hobby.

Secondly, why are you so offended that he used jargon particular to artists? Even if he did appropriate the term, it seems to be a fairly straightforward abbreviation of the word lithograph, which every single person reading slashdot apparently understood.

Re:Really? (0)

Anonymous Coward | more than 4 years ago | (#28670903)

Why not

"Obama Photographer Says AP & Fairey Are Both Wrong"

Simple, straightforward.

Re:Really? (1)

Killer Orca (1373645) | more than 4 years ago | (#28670579)

Photog is also a word too; I was surprised to learn this but apparently it is quite common in photography circles. I originally thought it was a term for a photo-blog, but was informed otherwise, I'm sure it's in my comment history somewhere...

Re:Really? (1)

adolf (21054) | more than 4 years ago | (#28670679)

But we're computer geeks, not darkroom geeks; "photog" might need a little more explanation in these circles, than in its native ones.

I'm having a hard time seeing infringement (5, Insightful)

Overzeetop (214511) | more than 4 years ago | (#28670461)

So, lets say that this isn't Obama, since the personality and timeliness of the subject appear to be clouding the issue. I'm presuming that the timliness of an image, since the copyright lasts for over a century, isn't salient (someone will doubtless correct me if I'm wrong).

Let's say this is the picture of the Hellers Bakery. Let's say it's a photo of a street flower vendor, and someone takes an anonymous photo off the net and decides to base a work of art on it. It might look like this http://www.josephcraigenglish.com/SidewalkFlowers.jpg [josephcraigenglish.com] and the artist would be required to create the hundred-plus silk screens and choose the colors to create a particular mood. How about if it were more generic? Say, a photo of the Capitol, posterized down to 8 colors with a red-white-and-blue sky?

Having seen the photo and the print for the first time today (but having hear about it previously), I'm calling bullshit on the AP and Garcia. Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.

I fear that the court will rule in favor or either the AP or Garcia. If they do, it will be just one more proof that the system is broken, and is stifling rather than promoting and enabling.

Oops (1)

Overzeetop (214511) | more than 4 years ago | (#28670479)

Sorry 'bout the Heller's Bakery line...I forgot to delete it when I chose another JCE print. FWIW, he does very nice work, and they're a bit of fun when you want to add color to a room. It's a bonus if you're from the DC area and know the spots he likes to take as subjects.

Re:I'm having a hard time seeing infringement (2, Interesting)

TinBromide (921574) | more than 4 years ago | (#28670557)

One other thing. If someone takes a picture of me and only me, shouldn't I have some say in what happens to the picture? I know that there have been instances where car companies have stopped fan made calenders from being distributed (i forget the case law as to who won though), so shouldn't people have rights over their likenesses? If Obama says that the use of his picture is cool, it should be cool.

We could even use this to "protect the children" in that the subjects could step forth and demand damages. That angle alone should get 90% of washington behind it.

Re:I'm having a hard time seeing infringement (2, Informative)

belmolis (702863) | more than 4 years ago | (#28671017)

What you're talking about is called "right of publicity". In the US it is a matter of state law, not federal law, and the details vary considerably from state to state. Obama probably has no claim here because the original photograph is a news photograph of a public figure. Obama might well have a claim if the photograph or a derivative work were used for something like advertising soap.

Re:I'm having a hard time seeing infringement (2, Informative)

belmolis (702863) | more than 4 years ago | (#28671143)

One other point: the right of publicity is a purely negative right. The holder of the right has the power to prevent certain uses of his or her image. He or she does not have the right to license uses of his or her image that infringe on other IP rights. If a photographer takes a picture of, say, Jennifer Aniston, she can prevent that photograph from being used in an advertising campaign for hairspray or clothing. She cannot, however, unilaterally grant a license to an advertising agency. The photographer owns the copyright to the photograph must grant a license for it to be used for commercial purposes. The permission of both Ms. Aniston and the photographer is necessary. So, in this case, since Obama didn't take the photograph, his approval is not sufficient to allow an infringing use of the photograph if the photographer or AP, whichever owns the copyright, does not approve.

Re:I'm having a hard time seeing infringement (0)

Anonymous Coward | more than 4 years ago | (#28671167)

Photos of the President fall under a completely different system. He is a public figure and it a way the people "own" him as a civil servant. His photos are generally public domain.

Re:I'm having a hard time seeing infringement (5, Insightful)

jdwilso2 (90224) | more than 4 years ago | (#28670657)

I think it's even more simple than that ... everyone's greedy and copyright law is completely broken.

the IP industry wants it both ways and only when it supports larger corporations rather than individuals ...

contrast this with the recent wikipedia issue of the UKs national portrait gallery claiming copyright on photos taken of portraits that are in the public domain

http://yro.slashdot.org/story/09/07/11/1239244/UKs-National-Portrait-Gallery-Threatens-To-Sue-Wikipedia-User [slashdot.org]

the real issue is that copyright law protects the entity with the largest legal budget.

Re:I'm having a hard time seeing infringement (0, Troll)

drinkypoo (153816) | more than 4 years ago | (#28670675)

I see your point, but I still disagree with it. If you think it's so easy to snap that photo, go shoot it yourself. When you do that, then you may dictate the terms under which it is distributed. Not before... unless the photographer licenses the photograph for your use. Or in theory, if the photographer was a paid employee of the federal government. hahahAHahaHAHa

Re:I'm having a hard time seeing infringement (3, Insightful)

Overzeetop (214511) | more than 4 years ago | (#28670769)

I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative. Many key elements of the photo have been removed or altered beyond recognition or to the point of being wholly generic (collared shirt, tied tie, blank background turned into two contrasting colors). There is no way to tell from the poster where he is (inside? outside? etc...)

Does it/should it come down to "did he create it from scratch or use the photo as a template for his work?" As I understand copyright, it doesn't. If he had created this from seeing Obama in person, or from the photo in the paper, without the digital version as a starting point - would it still be copyright infringement?

Let me try a different direction: as a public figure, with the cameras "always on," and the number of poses that are common to a man who carefully considers his speeches and deliveries - is there any shot of him that _can't_ be found to match a realistic rendering of his bust in a "natural" or "common" stance from scratch? I suspect, though I can't prove, that amongst the thousands and thousands of hours of TV footage of the campaign and first 6 months of his presidency there is a shot of him at least once, if not multiple times, with a pose similar enough to the photo to use as a model for the poster. That, to me , makes the subject so generic as to be a fact, and not copyrightable. The exact digital file, however, is still copyrightable, as it puts him in a place, with particular fine, defining features of the time, and with a specific background, foreground, and the like - i.e., a photograph.

Re:I'm having a hard time seeing infringement (1, Insightful)

drinkypoo (153816) | more than 4 years ago | (#28670821)

The questions you are asking are all valid ones, which is why copyright law addresses the concept of a derivative work. You might disagree with the notion that a piece of media which is difficult to create is worth more than one that takes less effort. But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.

Ultimately, if you don't want to secure the author's permission, you should do your own work. Copyright law says that material should eventually pass into the public domain so that we can all use it as we like, and unfortunately that time has been pushed back basically into infinity. That's not this guy's fault, though.

Ultimately, if you want to create a derivative work, go ahead. Nobody can or will stop you. If you want to distribute it, you should negotiate with the original author. If you're not willing to meet their terms, you should just piss off.

Fair use does not permit you to make something out of someone else's work and benefit from it. It permits certain uses for educational and critical purposes. You don't have to pay to excerpt a movie or television show if you're talking about it and it's necessary to your point. You don't have to consult the author before you excerpt parts of a book for the purpose of writing a review. But on a whim? That's not what fair use is for.

Re:I'm having a hard time seeing infringement (4, Insightful)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28670931)

Ultimately, if you don't want to secure the author's permission, you should do your own work.

Sorry to disillusion you, but nihil sub solum novum. There is no such thing as "your own work"; all creators build upon what others have done.

Re:I'm having a hard time seeing infringement (0)

Anonymous Coward | more than 4 years ago | (#28671057)

SO many people have the arrogance to think if they create an IDEA, that they own it with no thought of the debt they owe to the GIANT whose shoulders they are standing on. Isaac Newton made reference to this sentiment, and he was one of the most original, insightful humans to ever live. It is really hard to overstate his accomplishment.

Re:I'm having a hard time seeing infringement (0)

Anonymous Coward | more than 4 years ago | (#28671487)

Exactly. The camera manufacturer and the companies who made the depicted clothes, etc, should get their share. I'm starting to hate everything related to copyright, including stupid greedy "artists".

Re:I'm having a hard time seeing infringement (1)

budgenator (254554) | more than 4 years ago | (#28671165)

But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.

I don't find the alleged original photograph and the posterized image to be recognizable, the angle of Obama's head is different in both the angle to the right and in elevation, the ears on the poster are smaller and less Opie looking. Even the pro's had a difficult time figuring out which photo might have been used, and the impression I got is even Fairey isn't sure.

Boy you just can make this shit up, a guy named Fairey turns a picture of a presidential candidate into a cheap copy of a Stalin poster and they use it in his campain!

Re:I'm having a hard time seeing infringement (1)

cpt kangarooski (3773) | more than 4 years ago | (#28671649)

But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.

That's a bit silly. If I review a movie, and I use portions of the dialog and plot, if I use audiovisual clips that are recognizable as being take from the movie, this is unlikely to be infringing because I've transformed the portions of the earlier work that I've used into a new work of criticism. Mere 'recognizability' isn't a factor in a derivative work infringement or a defense of fair use against the claimed infringement.

Fair use does not permit you to make something out of someone else's work and benefit from it.

It absolutely does. Take a look at the Supreme Court opinion in Campbell v. Acuff-Rose Music. In that case, the Roy Orbison song 'Pretty Woman' was parodied, and the parody was sold commercially. This was a fair use because the parody didn't harm the market for the original song.

It permits certain uses for educational and critical purposes.

No, fair use permits any use which is fair and otherwise infringing. Any kind of use whatsoever may be fair, but no particular use is necessarily fair (there have been educational and critical uses which were found to not be fair uses when they went to court, for example). Ultimately, each use must be decided on its own merits, given the facts unique to it, generally through the filter of a four-factor test. It's very much a case-by-case thing. Don't feel bad for misunderstanding it, though; even the courts have a lot of trouble with it.

But on a whim? That's not what fair use is for.

Whether a whim is involved is not part of the analysis, though, and probably would never matter in any case. Fair use protects the whimsical infringer as much as the serious one. For example, a person who, on a whim, decides to engage in time shifting, would likely be protected.

Re:I'm having a hard time seeing infringement (2, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28670951)

I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative.

I agree. It is a classic fair use.

The problem is that the way the courts handle these cases, it can cost zillions of dollars in legal fees to get to that point, and there is no guarantee how it will come out. The creative process is hampered by this openendedness. An artist should be able to know ahead of time whether he can or can't use something, and if so to what extent.

Re:I'm having a hard time seeing infringement (2, Insightful)

rhizome (115711) | more than 4 years ago | (#28670861)

Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.

All photographs are "factual" information.

Re:I'm having a hard time seeing infringement (1)

Overzeetop (214511) | more than 4 years ago | (#28670905)

But they are composed in a way which is unique. It's my assertion that the unique features which make a photograph have been almost entirely removed - transformed into an image which could very well be found to be nearly identical to a frame of a TV clip of the same - or even another - speaking engagement the (now) President has given over the last 2 years.

FWIW - I've been doing photography for 30 years, almost never for money, but I work in the Architecture field, which is all about creativity, uniqueness, and just filthy with copyright issues.

Re:I'm having a hard time seeing infringement (1)

sker (467551) | more than 4 years ago | (#28671493)

>> "It's my assertion that the unique features which make a photograph have been almost entirely removed - transformed into an image which could very well be found to be nearly identical to a frame of a TV clip of the same - or even another - speaking engagement the (now) President has given over the last 2 years."

If that's true then it should have been easy for Fairey to find some pubic domain image to use. If I take someone else's code for something I could have written but didn't feel like it, that's potentially bogus. If I then disavow any knowledge of the original coder until pressed,(as Fairey did) that's pretty dishonest. There existed a system where Fairey could have licensed the image if he wanted. He didn't bother. He didn't want to share any credit. If the original photograph contributed nothing at all to the final piece, then it never needed to be used in the first place. It's clear to me that *something* of the original photo remains in the final piece -- and as such the original photographer deserves *something* for it. Be it credit, a fee or whatever.

Re:I'm having a hard time seeing infringement (3, Interesting)

Overzeetop (214511) | more than 4 years ago | (#28671729)

Fairey had no idea who created the image, and as I understand it there was no credit in the clip he found on the internet. Last year I tried to search for an image of a pro football player (not one of the "stars") to frame for a big fan of his who is a friend. I looked all over the net and found several, but most were not the quality needed for reproduction, and most had no attribution whatsoever. By chance, a full resolution photo was posted to a fan site associated with the team - again with no attribution whatsoever. Luckily, the photographer _had_ placed his name in the EXIF data, and the photo had been uploaded without any modifications. From his name, I found his website and obtained permission to reproduce the photo (he printed a nice 16x20 at his printer and shipped it to me for a reasonable fee). Honestly, it can be hard to track down a copyright owner with all the thumbnail clips on the net. If you stopped 100 people on the street in middle America and asked them how to view the EXIF data on a jpeg photo, do you think you'd get more than 4 or 5 people to actually be able to tell you? I knew, and it was still difficult to find.

It's not as easy as you think to find the author. I got burned for $2k by Getty about a year ago for two 150x200pixel images on my business website. The images were contained on a "royalty free" CD purchased by my web designer some 8 years prior, and the images contained no attribution to the author or copyright holder. A web crawler for Getty matched the images to their catalog, and I got a "bend over" letter in the mail. The actual usage would have cost me about $180, had I known the images weren't royalty free, and known that Getty owned/managed the copyright.

I don't think that particular photo made any difference to the art. It could have been one of many photos to act as a "portrait setting" for the bold color scheme and MLK-like pose for the poster (which I believe is the art of the piece)

Re:I'm having a hard time seeing infringement (1)

Firehed (942385) | more than 4 years ago | (#28671481)

Photographers (more often than not) are attempting to tell a specific story, and will very intentionally compose a photo accordingly. So while photos aren't lies (excluding work in photoshop), they can and do often take a small section of the truth way out of context.

Re:I'm having a hard time seeing infringement (2, Interesting)

sker (467551) | more than 4 years ago | (#28671403)

>>Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.

If that's truly the case, then why would Fairey have needed to use the photo at all? If it is generic, why did he use it? Why wouldn't he use his magic artist skillz to create some equally lifelike pose without anyone else's photo? I understand the majority of Slashdot doesn't view photography as a creative art with any intrinsic value. But, if the photo has no value then don't use it. If the original photo adds nothing at all to the "essence" of the final work then Fairey shouldn't have needed it in the first place.

Attitude not changed too recently (4, Informative)

lee1 (219161) | more than 4 years ago | (#28670541)

If his initial attitude changed it must have done so a while ago. I heard the artist and the photographer interviewed by Terry Gross on NPR some months ago, and the latter was quite clear that he considered his photograph to have been stolen, and also made the claim then that he thought he owned the copyright, not the AP. He was a bit peeved, and frustrated by the general attitude that people thought they could do whatever they wanted with images that they happened to find on the internet (which was where this artist found the photograph). He described the difficult, creative work and considerable preparation that went in to making the photograph, and, naturally, did not agree with the artists' view that his transformation of it was creatively significant enough to support his claim of fair use. Originally, I was sympathetic with the artist, but after hearing the photographer's point of view, I'm torn.

Re:Attitude not changed too recently (1)

mckinleyn (1288586) | more than 4 years ago | (#28670799)

Also... It looks like something a mildly talented person could do in under an hour in Photoshop. The street artist (because that's what he is) says he drew the image for the poster using the (copyrighted) photo as a visual reference... But they look identical. Tracing something and applying three color filters is NOT fair use. As the AP says:

"The Infringing Works do not alter any of the distinctive characteristics that make the Obama Photo so striking -- from the selection of subject matter, to the composition, to the exacting details of the photo. All the recognizable elements remain completely and unmistakably intact in the Infringing Works, including the angle and slant of President Obama's head, and his gaze and expression; the contrast, focus, and depth of field of the photograph; as well as the shadow lines created by the lighting in the original photo. Fairey even used the red, white and blue flag imagery that Mr. Garcia worked to capture in the background of The AP's photo."

Even if you don't agree that someone should be able to copyright the angle and slant of a famous figure's head, gaze and expression (which they shouldn't be able to), you HAVE to admit that contrast, focus, depth of field, shadow lines, blah, blah, blah are all elements that should be copyrighted. Else a tracing of an image you found online WOULD be valid for commercial use. But the long and short of it is, it ISN'T.

And I'm depressed that this crap is going to be the case they use to try the fair use doctrine in the media ("the media", ironically, being one of the parties in the suit...)

Re:Attitude not changed too recently (4, Interesting)

Fred IV (587429) | more than 4 years ago | (#28670925)

Also... It looks like something a mildly talented person could do in under an hour in Photoshop.

Which is all Shepard Fairey really has to offer the world. All of his best "work" is borrowed more or less directly from another artist's source materials with little to no modification aside from his brand name. [art-for-a-change.com]

It may be that Duchamp and Warhol paved the way towards the act of selection being defined as a creative act, but I find it difficult to think of Fairey in the same light. His work isn't breaking barriers, presenting irony, or forcing us to rethink our interpretation of the source material he chooses to use. It is blatantly commercial and self-serving, calling attention to the Fairey brand without adding any value or doing any creative work as part of the process.

Re:Attitude not changed too recently (0)

Anonymous Coward | more than 4 years ago | (#28671321)

Mod this up. Might even want to follow the link and read it.

Re:Attitude not changed too recently (0)

Anonymous Coward | more than 4 years ago | (#28670967)

Had you taken a moment to open the photo and lithograph in photoshop and overlaid them, you would have found that they are not at the same angle, and had you corrected the tilt the 12 degrees needed to make them the same angle you would have seen that it was not traced.

The shadows do not line up, the ears are drawn more symmetric than in the picture, his eyebrows are more filled out and his haircut is cleaned up, his nose is more centered. That's just what's obvious in the first few seconds.

Don't throw out accusations of tracing without even taking the short time needed to test your theory.

Garcia's Law Firm? (0)

Anonymous Coward | more than 4 years ago | (#28670629)

Anyone notice the name of Garcia's law firm? It's familiar to most slashdoters, Boies Shiller & Lexner.

Does the AP have a leg to stand on? (1)

electricprof (1410233) | more than 4 years ago | (#28670701)

In the discussions I'm seeing pros and cons on Garcia versus the artist, but I'm not seeing anything supporting AP. IANAL and need some insight. Does the AP have any legitimate claim to copyright ownership?

Re:Does the AP have a leg to stand on? (4, Insightful)

tweak13 (1171627) | more than 4 years ago | (#28671131)

From what I understand, their claim is pretty much completely dependent on the wording of the contract they had with the photographer. If the AP has a signed contract saying that they own the copyright of all the pictures he took for them, then their claim is valid. If they only have a contract that says they get unlimited reproduction rights (my understanding is that a typical contract is more like that), then they don't own the copyright. Until details of the contract are presented, nobody can know anything more about their case.

At any rate (0, Redundant)

Anonymous Coward | more than 4 years ago | (#28670713)

...This is good publicity for that nice looking ass. Nerds are like "What ass?" You men you!

Red, white, and blue (1)

macraig (621737) | more than 4 years ago | (#28670795)

No one seems to have noticed the real "transformative" or impressionist addition made by the "painter", huh? He altered the background and shading in the photo to reflect a gradient from red to white to blue.

I'd say that's plenty transformative enough. Regardless, I feel like I'm playing devil's advocate in even pointing this out, given that I disagree with most of the justifications for the existence of copyright in the first place.

This "photog" Garcia is apparently a prick who isn't happy with just his 15 minutes of fame... he wants money and "justice", too.

This is all irrelevant (1)

Orion Blastar (457579) | more than 4 years ago | (#28670809)

as it is up to a court and judge to decide if the "fair use" clause can be used for the artwork.

In many cases artwork is based on pictures, but it is different enough from the picture that it does not violate copyrights. If it was a bit by bit copy you can claim copyright violation, but it is not a 100% match and may be different enough through effects and colors that it may fall under "Fair Use" for parody or works of art, or anything.

It should be noted that the "stupid" DMCA law tries to do away with "Fair Use", and that our founding fathers of the USA would be upset if they read the DMCA to see that "Fair Use" clauses are being removed or limited in ways that others cannot use copyrighted works for parodies, works of art, education, etc under a "Fair Use" clause.

All that was done was figure out which photograph the artwork may have been based on, and that consent was not given by the AP or the photographer; however, "Fair Use" might still apply, and it is up for a judge and court to decide it.

What horrors to learn that even "Fair Use" does not apply anymore, which means our freedom and rights are trumped by Intellectual Property and Copyright laws. Which means we have been cheated out of rights and freedoms promised to us by the US Constitution by those who seek to profit at the expense of others losing their rights and freedoms.

Re:This is all irrelevant (1)

John Hasler (414242) | more than 4 years ago | (#28671479)

The DMCA applies to neither fair use nor to this case.

Re:This is all irrelevant (3, Informative)

Orion Blastar (457579) | more than 4 years ago | (#28671607)

You can't be serious about that? [eff.org] Clearly it does apply.


Fair use serves a crucial role in limiting the reach of what would otherwise be an intolerably expansive grant of rights to copyright owners. Were it not for the fair use doctrine, each of the following activities would be infringing:

        * whistling a tune while walking down the street (public performance)
        * cutting out a New Yorker cartoon and posting it on your office door (public display)
        * photocopying a newspaper article for your files (reproduction)
        * quoting a line from The Simpsons in an email to a coworker (reproduction)
        * reverse engineering of computer code (reproduction)
        * "time-shifting" a radio or television program (reproduction)
        * playing an excerpt of Roy Orbison's "Pretty Woman" in a copyright law course (public performance)
        * quoting from a novel in a review (reproduction)

If you ever took an art class, you know that they use such things as pictures and then ask you to create your own art from it. If this case is found guilty of copyright impingement, then art classes will be outlawed or drastically changed so that one cannot create art from a photograph.

It is not a photocopy, it is art, it is not an exact copy, it is different in a certain way as an art form goes.

If this case is valid, then artists everywhere will lose their rights and freedoms to create art just like it.

A copy of a copy.... (1)

cyn1c77 (928549) | more than 4 years ago | (#28670817)

From Garcia in the techdirt article:

"When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

Actually, posting it on the internet does make it free for the taking, Garcia. It's just not free to sell or distribute as ones own.

Personally, I think this is a bunch of crap. At the very most, the poster only looks like a drawing of Obama's head from the picture. Maybe it was stylized in Photoshop or maybe he very carefully sketched out a drawing of the photo, but there was also some additional details added by the poster author that are not in the picture, just as there are some details in the photo not in the poster.

Yes, someone made a sketch of a picture that you took of someone and posted on the internet. Deal with it.

Re:A copy of a copy.... (1)

Registered Coward v2 (447531) | more than 4 years ago | (#28671081)

From Garcia in the techdirt article:

"When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

Actually, posting it on the internet does make it free for the taking, Garcia. It's just not free to sell or distribute as ones own.

Actually, you went just a bit to far/ Had you said:

It's just not free to sell or distribute.

you'd be correct for much of what is on the net. I run into the "I found it on the net so it must be free to use / public domain / not copyrighted;" it's amazing how many people think that even when they are otherwise savvy business people. I often ask "so because I can easily get electronic copies of our work on the net it must be free for anyone to use rather than pay use, eh?" Of course, these same people balk at that notion. Oh well...

At any rate; my opinion is that Fairey's painting is transformative enough to not be infringement; especially since a thoughtful pose is not all that original to begin with.

Buyer's remorse? (-1, Redundant)

mi (197448) | more than 4 years ago | (#28670863)

According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration

Despite the major news-papers' best efforts [hollywoodreporter.com] , the bottom has fallen off [gallup.com] of whatever container was holding support for Obama. Perhaps, Mr. Garcia is one of the remorseful buyers of the "we are the ones we've been waiting for" snake oil, and, somewhat literally, wants his money back?

What are the chances... (2, Insightful)

Overzeetop (214511) | more than 4 years ago | (#28670927)

...you could find a frame in the thousands of hours of TV coverage of Obama that has his face in this approximate pose and orientation - enough from which to base the stylization of the bust, and crop out the background to the multi-colored sky and banner bottom? Would the existence of such a frame nullify this lawsuit, or create a second one allowing one of the TV networks to sue the artist as well?

Re:What are the chances... (4, Insightful)

DRJlaw (946416) | more than 4 years ago | (#28671457)

It would make virtually no difference, unless you could show Fairey copied from that frame instead of the photograph (meanwhile, sourcing from the photograph has generally been acknowledged).

Copyright does not require uniqueness or novelty. It requires originality, i.e., you created the portion of the content you are claiming rights to rather than copying it or registering someone else's work, and expressiveness, i.e., the portion of the content you are claiming rights to is an expression of an idea (aliens invading earth) rather than a bare fact, an abstract idea, or a conventional meme/plot. Ex: Two photographers standing right next to each other take essentially simultaneous and virtually identical photographs of Obama at a rally. Two separate copyrights, and neither work infringes the other.

Once you get beyond registration (which is required in order to file suit for copyright infringement), the primary bone of contention in a copyright infringement lawsuit for a "derivative work" is whether the author of the later work 1. had access to the earlier work and 2. appropriated substantial expressive elements of the earlier work. If there was no access, or even with access no appropriation from that work, there should be no copyright violation. Ex: Third photographer takes photograph that is coincidentially similar to first two at later portion of rally. Third separate copyright, no infringement. Ex: Third photographer poses Obama look-alike in rally-like staging to create a third photograph like one of the first two (the only one they've seen). Probable copyright infringement of only one copyright.

The only advantage to there being another source, if in fact it was the other source, is to say "No, I didn't take it from you, I took it from them, and it was public domain/licensed/none-of-your-business-because-it-wasn't-yours. And then prove it. The public domain, of course, might be that other source. But don't expect the copyright owner to take someone's word for it unless they're a reasonably trustworthy someone.

Re:What are the chances... (1)

Overzeetop (214511) | more than 4 years ago | (#28671631)

So, if this is not a unique pose for Obama, and the shirt and tie are also common, is this not "a conventional meme/plot" or - in this case - pose which is a feature of the personality of the man, rather than the creative originality on the part of the original photographer?

If this were a shot of the Capitol, would it make a difference? What if the graphic artist who created this:

http://www.lneuman.com/ACEOs/images/m2588.jpg [lneuman.com]

was sued by the photographer who took this shot:

http://creativebushido.files.wordpress.com/2008/07/us-capitol-building1.jpg [wordpress.com]

The perspective, lighting and general form are nearly identical. A small amount of cropping has been done (as with the bottom of the Obama photo), the print has been colored using a "watercolor" look which is easily applied in Photoshop by even a rank amateur (as with the look in the Obama poster), the sky has been changed in color (as with the Obama poster) and some small additional artistic/relevance has been added (leaves in the foreground of the sky vs Obama logo on the lapel).

What if the artist mentioned that she saw that photo on a postcard and used it to get the perspective correct? Would that be infringement? How would it be proven, aside from an admission of the use by the artist, given the large number of pictures of the capitol?

Re:What are the chances... (1)

John Hasler (414242) | more than 4 years ago | (#28671539)

Seems to me that showing that the painting could have been plausibly based on any of several photos would strengthen the painter's case considerably. Doing so would indicate that what he copied was not the photographer's creative expression but mere scènes à faire.

Re:What are the chances... (2, Interesting)

WNight (23683) | more than 4 years ago | (#28671661)

Neither. Any number of photographers who took identical photos would have their own copyright. Only the one whose photo was traced (if indeed one was) would have a case. If the artist looked at photos but drew his own he's likely fine, unless he took extreme attention to detail.

If this had been a frame from a video it would (more) likely fall under fair use being an insignificant part of the whole. Each still photo is individually copyrighted, borrowing one still photo is less 'fair' than one frame of a video.

Frankly any outcome of this trial/issue is counter-factual because we keep insisting you can own ideas. We should all just ignore the law extra hard for a while and hope it goes away.

Re:What are the chances... (1)

Overzeetop (214511) | more than 4 years ago | (#28671763)

"If this had been a frame from a video it would (more) likely fall under fair use being an insignificant part of the whole. Each still photo is individually copyrighted, borrowing one still photo is less 'fair' than one frame of a video."

That brings up an interesting distinction, especially as video gets better and better. We already record HD at 1920x1080 - fully 2 megapixels. (For the young 'uns out there, my first digital camera was less than 1MP, and I have some negatives on Konica 3200 which can certainly be argued have less effective resolution than a 2MP image. Also, it's not uncommon for still photogrpahers to take shotgun photos, snapping off thousands of images a day, many of which can be strung together as a "flip book" style video. I suspect it could be argued that - once extracted - the frame is the art, and is copyrightable. Certainly cells from old animation films are already treated as such.

Copyright is out of control (1)

The Cisco Kid (31490) | more than 4 years ago | (#28671075)

Taking a a photograph of something is not an original work, for the most part. Painting a picture of it might be.

But to be honest (while leaving out entirely my position on Obama's politics themselves) I would think that Obama himself should have copyright on any images of himself, to hell with who made them.

I think this should apply in general, although photo studios certainly believe otherwise and go out of their way to tell you so. If the subject of a photo is a person, then that person should have an overriding right to use that photograph in any way they see fit, at the very least, in addition to, any rights that the photographer might have. If the photograph is of a privately owned object, then ditto for the owner of said object. If of a publicly owned object, then the photo, once released, should be public domain.

Re:Copyright is out of control (4, Insightful)

e9th (652576) | more than 4 years ago | (#28671195)

Nearly every photograph Ansel Adams [wikipedia.org] ever took was of a "publicly owned object." Do you really think his photographs are not original work deserving of copyright?

And he wasn't "then President-Elect" (1)

pcountry (662862) | more than 4 years ago | (#28671371)

... Obama became President elect on the first Tuesday in Nov. 2008, when he was elected president. The photo was from the previous April.

I'll tell you what this means (1)

Rude Turnip (49495) | more than 4 years ago | (#28671577)

Bill Clinton is going to be all over me like I was a Christmas ham! (or a chubby intern)

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